Shining a bright light into the dark corners of the shadow-world of literary scams, schemes, and pitfalls. Also providing advice for writers, industry news and commentary, and a focus on the weird and wacky things that happen at the fringes of the publishing world.

April 25, 2008

Victoria Strauss -- Precautions for Small Press Authors

With the rash of small presses, both print and electronic, going out of business lately, it's a minefield out there for authors. A recent example: Rain Publishing, a Canadian publisher with a seriously nonstandard contract that abruptly closed its doors this month, supposedly due to the ill-health of the owner. This thread at Absolute Write follows the depressing saga from start to finish.

As I've noted before, publisher closures can be a nightmare for authors. While some presses do the right thing and formally release rights before shutting down, others simply vanish, yanking their websites, abandoning their email addresses, refusing to respond to letters and phone calls--and failing to terminate their contracts. Having your rights encumbered by a still-existing contract may make it extremely difficult to interest a new publisher in your book, even if the original publisher is clearly out of business. Writer Beware has gotten hundreds of complaints over the years from writers left in this kind of limbo by collapsing small publishers and micropresses.

How to protect yourself? You never can, completely--small press finances tend to be precarious at the best of times, and even the most assiduous research may not always turn up ongoing problems. But there are some things you can do, both to avoid problem publishers in the first place, and to ensure your contract makes it possible to get free if the publisher goes bust (or if, as sometimes happens, it turns into one of those Jim Jones-like enterprises where all authors have to wear a happy face and toe the party line, and dissent isn't tolerated).

AVOIDING PROBLEM PUBLISHERS

- Be an educated consumer. Don't go into the publisher search blind. Know what to look for and what to avoid. Some resources to help:

- Research, research, research. Yes, I know, I say this a lot (most recently, in this post). But many of you aren't listening. If you were, I wouldn't get nearly so much email.

Before submitting to a small press, make sure to thoroughly check it out. Google it. Write to me (beware@sfwa.org). See if it shows up on P&E, or if it's been discussed at Dear Author, Piers Anthony's Internet publishing resource, Clea Saal's Books and Tales, or Absolute Write. Contact some of its authors. Check its books' availability. Evaluate how the books are being marketed. Order a book and read it. This may seem like a lot of work--but if you don't do it and are ever caught up in a publisher closure, I guarantee you will wish you did.

- Avoid new publishers till they've established themselves. That means waiting till they've been in business for at least a year, and have put out a number of books. This gives you at least some assurance of stability and performance. It also allows time for complaints to surface, and makes it possible for you evaluate how (or if) the publisher is marketing its books. For more detail, see my previous blog post on the risks of querying new publishers.

GETTING FREE

- Make sure the contract is time-limited. That way, if the publisher vanishes without returning your rights, you won't have to wait forever to be released. Life-of-copyright contracts make things much more difficult.

- If the contract is time-limited, make sure the term is reasonable. Ten years is not reasonable. Nor is seven. In my opinion, five years is the longest term you should consider. Three years is better.

- If the contract is life-of-copyright or open-ended, make sure there's a termination clause. A good termination clause allows you to terminate the contract at will with adequate notice. Even if the publisher pulls up stakes and vanishes, you can still invoke the termination clause by sending notice to the last-known address.

- Don't give up copyright. Most writers know not to grant copyright outright. But some publishers try to play both ends against the middle by taking copyright temporarily, with the promise to return it when the book goes out of print. In those circumstances, writers may feel that giving up copyright is no big deal--after all, they're going to get it back eventually, right?

Not necessarily. Suppose the publisher gets into trouble and does a bunk. Temporarily or not, you gave up copyright--which means that you no longer own your book. The only way you can regain ownership is if and when the publisher releases copyright back to you. If your publisher vanishes without doing that, you're in a much worse situation than an author who has simply granted rights. Want to re-publish with another small press? Even the tiniest micropress is unlikely to want a book whose copyright is not free and clear. Want to self-publish? That could be a problem too. Most self-publishing services' agreements require authors to warrant that they are the copyright holder.

If this sound far-fetched, it's not. I'm seeing a fair number of small press contracts that take temporary possession of copyright, and no fewer than two temporary-copyright publishers have gone bust in the past year. One of them is Rain Publishing--which, in the first stroke of good luck its authors have had, appears to have sent out releases prior to its demise.

- Don't let the publisher claim copyright on editing. Some publishers claim that they, or their editors, hold the copyright on any editing or copy editing done by the publisher. Some go even farther, claiming copyright on editing done by you if that editing is based on their suggestions. So even if you get your rights back, you regain them only to the manuscript you originally submitted, not to the edited and published version--which, if the editing process was fruitful, may well be the version you'll want to try and re-sell.

For some publishers, claiming copyright on editing has no clear benefit. Why should they care if you use their edits, especially if the reason you're re-publishing is that they've gone out of business? For others, it's a way to make some extra income by charging departing authors a fee if they want to take their edits with them--and also, possibly, to snag a final cash infusion on the way out of business.

10 comments
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The entire section on "Getting Free" is excellent! I will definitely link to this post. Writers need to know this information and not get encumbered in the first place.www.writers-first-aid.blogspot.com

I wouldn't say it's exactly common for a publisher to claim copyright on editing, but I've seen it often enough that it is something writers need to watch out for. It's often stuck in the middle of dense clauses that you might be tempted to skim, or buried in the "Miscellaneous" section at the end of the contract, or mentioned so briefly that it might be easy to overlook. Some examples from actual contracts:

"All rights to the original work as submitted will revert to the author."

"Publisher's editing work or changes from the original manuscript due to Publisher's editing advice...cannot be subsequently used or published by the author."

"Author agrees that Publisher owns and shall retain all rights in and to...any name, mannerism, characteristic, or other identifying elements of any character, situation, place or event used in connection with the Work, if the same was devised by Publisher alone or by Publisher and Author or by Publisher and any third party."

"Avoid new publishers till they've established themselves." I guess that is good advice to avoid trouble, but how are new publishers supposed to stay afloat if everyone followed that advice?

I have two responses. First, I probably should have qualified that advice by saying "Unless you're absolutely sure that the people involved have real publishing experience." For instance, Lou Aronica, former publisher at Berkley and Avon, is launching a new publisher. I wouldn't hesitate to submit to it, new or not.

Second and perhaps more important, it's not writers' responsibility to help publishers stay afloat. It's up to publishers to find a way to do that. Writers' only responsibility is to themselves--because if you don't watch out for yourself, no one else will.